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Until recently Anthony Guadioso and his attorney, Peter Ticktin, were eager to talk about the man they say infected Guadioso with the AIDS virus. Eager to provide copies of a lawsuit outlining their charges, to speak with the press, to name the accused man, to employ provocative rhetoric in contending that Guadioso's two-year homosexual love affair was in fact a long death embrace.
"He murdered my client," Ticktin proclaimed in an April 21 report on WCIX-TV (Channel 6), during which the name of the alleged murderer was mentioned prominently by Channel 6's health specialist, Steven Greenberg. "When he knowingly infected my client with HIV," Ticktin continued, "it might as well have been a bullet to the heart. But the bullet would have been a lot faster."
Today Ticktin and Guadioso are much more cautious about what they say. Forty-eight hours after the Channel 6 broadcast, attorneys for the accused man filed an emergency motion with Dade Circuit Judge Robert Kaye asking that he impose a gag order and seal from view all court documents relating to Guadioso's lawsuit. The Channel 6 report, they claimed, had caused irreparable harm to their client's business relationships. Furthermore, they argued, Ticktin had violated state law by naming the man in his court pleadings. Guadioso and Ticktin would continue to damage their client's reputation, they said, unless stopped by the court.
That swift action by the lawyers, however, contrasted sharply with a much more complacent attitude that had prevailed for months. Guadioso's allegations had been a matter of public record since November 30, 1992, when Ticktin filed the complaint charging Guadioso's former lover with fraud and negligence for allegedly spreading the fatal virus. Though those court documents were public record and available to anyone willing to rifle through files at the county courthouse, the accused man's attorneys, Francisco Escalante and Alan Feeney, made no effort to protect their client's identity.
But after Channel 6 revealed his name to thousands of South Florida households, Escalante and Feeney quickly invoked a 1991 Florida "superconfidentiality" law that restricts dissemination of HIV test results. Judge Kaye responded with alacrity. Within hours he ordered that anyone connected with the lawsuit be barred from discussing it with third parties. In addition, all documents relating to the suit were ordered sealed until they could be rewritten to excise the accused man's name and replaced with initials only. From that moment on, and until further notice from the court, the man was supposed to be known only as "J.S." (Despite the judge's emergency ruling, court files containing J.S.'s full name were still available four days later. New Times obtained copies of those files but has chosen not to identify the man.)
Guadioso's lawsuit, Judge Kaye's order, and the legal arguments made by J.S.'s attorneys have raised a number of questions about application of the state's so-called superconfidentiality statute, violation of which carries a second-degree misdemeanor criminal penalty.
One year ago Peter Ticktin, Guadioso's attorney, found himself on the other side of that law. At that time he had sued a Miami physician and a lawyer for allegedly revealing that his client was suffering from AIDS. Ticktin took pains to shield his client's identity; he was known only as "John Doe." But in Guadioso's case (which arose as part of an unrelated property dispute), Ticktin apparently had no qualms about naming J.S. and publicly announcing that test results showed him to be HIV-positive. In doing so, according to J.S.'s attorneys, Ticktin violated a section of the superconfidentiality law that states, "[Court] pleadings pertaining to disclosure of [HIV] test results shall substitute a pseudonym for the true name of the subject of the test."
Attorney Alan Feeney says he is bound by the gag order not to discuss J.S.'s case and thus is not at liberty to explain why he waited nearly five months before objecting to Ticktin's having named his client in court papers. But speaking generally, he sees a broad application for the superconfidentiality law. In creating the statute, he believes, state legislators sought to encourage HIV testing by providing protection to people whose identities and test results might be revealed without authorization. Health care professionals, he argues, are not the only people subject to the law's restraints. "If a lawyer places the person's name in the public record, that lawyer is circumventing the legislature's intent," Feeney asserts.
Among those who disagree with Feeney is Miami attorney Stephen Bronis, who opposed Peter Ticktin in the John Doe case. (Bronis represented the lawyer who allegedly gossiped about John Doe's AIDS condition.) The section of the superconfidentiality law pertaining to court pleadings, Bronis contends, was meant to apply only to plaintiffs filing suit against those who may have revealed their test results, not to attorneys such as Ticktin. "In my opinion and the opinion of every court that has ruled on this issue," Bronis says, "they [Ticktin and Anthony Guadioso] are not covered by the confidentiality statute." Just two weeks ago a judge seemed to affirm that position by dismissing Ticktin's complaint against the lawyer Bronis defended.
In issuing his gag-and-seal order, though, Judge Robert Kaye appears to have sided with Feeney A at least until such time as he can hear arguments from both sides. But already his decision is drawing criticism. Anne Noble, a St. Petersburg attorney specializing in First Amendment law, says that other courts have viewed such a wide prohibition on discussion of HIV status as an infringement on the constitutional right of free speech. Kaye has every right to silence discussion for any number of reasons, Noble adds, but protecting J.S. from publicity surrounding his HIV status should not be one of them.